Alice in Wonderland and Humpty Dumpty enter HB2 legal fray

From whichever side of the glass you look through at House Bill 2, North Carolina can sometimes seem to have gone down the rabbit hole.

Critics of HB2 contend the law — which requires transgender people in government facilities to use public restrooms that align with the gender on their birth certificates, not that with which they identify — is as evil as the Jabberwocky.

Advocates for HB2 argue it does nothing more than extend tradition and that people, civil rights organizations and federal agencies challenging the law are trying to abolish sex-separated facilities.

In a court document filed this week in a lawsuit brought by the ACLU challeging HB2, lawyers working for Gov. Pat McCrory referenced a Lewis Carroll line from “Through the Looking Glass and What Alice Found There.” The governor’s attorneys, arguing against a motion to block enforcement of HB2 as legal proceedings pend in court, quote Humpty Dumpty as the nursery-rhyme character discusses semantics with Alice.

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In the document, Charlotte attorney Robert D. Potter and Washington-based attorneys S. Kyle Duncan and Gene C. Schaerr contend that the ACLU’s request — “now aided by agencies of the federal government” — was nothing more than “the tip of a legal spear” being “hurled at the ages-old tradition of sex-separated bathroom, locker-room and shower facilities.” Though a footnote in the ACLU challenge states the lawsuit does not “seek to abolish sex-separated facilities,” the governor’s attorneys argue that using “subjective gender identities” would lead to the same result.

“The ACLU’s reassurance thus deploys the rhetorical strategy popularized by Humpty Dumpty, that is ‘When I use a word ... it means just what I choose it to mean — neither more nor less,’” the attorneys stated in their memorandum. “... In short, the ACLU’s motion is indeed at the vanguard of a legal strategy, in concert with the federal government, to abolish ‘sex-separated facilities,’ as that term is understood by everyone in America.”

The governor, in addition to seeking to keep HB2 in place, requested more time to take sworn statements in a case being watched by legal scholars and others around the world. The American Civil Liberties Union, Lambda Legal and the plaintiffs they represent responded Friday.

“After rushing to enact HB2 in a span of hours, the government is now asking the court for six months to study its own law, so it can figure out what to say in its defense, all while transgender people suffer,” the groups and litigants said in their joint statement. “By arguing that HB2 should remain in effect, Governor McCrory, legislative leadership and UNC are continuing to defend a law that specifically targets transgender people who just want to be able to use public facilities safely and securely like everyone else.”

The governor’s response was one of many filings this week in some of the five lawsuits over HB2.

In one lawsuit, brought by the federal government saying HB2 violates federal education and employment laws, there was some common ground between the challengers and defendants.

The federal government asked the judge to issue a ruling by June 23 that relieves the U.S. Department of Justice from immediately withholding federal funds that would go to the University of North Carolina system, the state Department of Public Safety and the UNC Board of Governors. U.S. Attorney General Loretta Lynch has said in recent weeks that funding would not immediately be withheld, after hearing that UNC did not plan to enforce HB2.

Under the Dome is your inside source on North Carolina politics and government and has been a regular feature in The N&O since 1934. Check here for the latest on state and federal government, political advocacy and upcoming elections. This blog is maintained by the N&O politics staff.